A recent decision from a New York state court should serve as a warning to parties litigating in New York: if you over-designate documents "Attorneys' Eyes Only" in discovery, you face the risk of sanctions. The decision was entered in an action brought by a software developer against Google.1 During the course of discovery, the parties agreed that documents containing "extremely sensitive" information could be produced with the designation "Highly Confidential - Attorney's Eyes Only," meaning that the documents so marked could only be reviewed by counsel.2
Google designated 233 documents as "Attorneys' Eyes Only."3 Google also designated a significant number of pages of deposition testimony as "Attorneys' Eyes Only."4 After the parties met-and-conferred, Google agreed to revise some of its "Attorneys' Eyes Only" designations, including by removing the designation on 32 of the 233 documents.5
Plaintiff ultimately filed a motion seeking an order directing Google to de-designate additional documents and testimony, and for sanctions for Google's abuse of the designations. After the motion was filed, Google attempted to get the plaintiff to withdraw the motion in exchange for Google de-designating certain documents and testimony. Plaintiff refused, but Google nonetheless withdrew the designations from all but 28 of the remaining "Attorneys' Eyes Only" documents and also de-designated some, but not all, of the deposition testimony it had designated.6
The court determined that Google should nevertheless be sanctioned for its initial designations, noting that "AEO designations 'shall be made as sparingly as possible'" and should not be used as a litigation tactic.7 The court also stated that "AEO designations are not negotiable. Discovery is either 'extremely sensitive' . . . or not. . . . A party cannot over designate documents then hold the improperly designated documents hostage until the adversary surrenders."8
The court found that the content of the documents and the testimony designated as "AEO" by Google did not support that restrictive designation, but instead supported the view that Google's designations were tactical. In particular, the court explained that "[t]he large number of designations, reviews, re-reviews, trickle of de-designations, culminating in a wholesale de-designation on the eve of argument of this motion does not support Google's assertion of appropriateness."9 Rather than "good faith cooperation," the court viewed...